The Sad Tale of Judge George Robertson

Only three
times in the history of Kansas has its Supreme
Court removed a judge from office:One
judge was ousted on account his financial dealings, another for political
misconduct, and a few months ago, Judge George Robertson was unbenched in Kansas - because he
watched porn.

This story begins in the 28th
Judicial District of Kansas, comprising Salina
and OttawaCounties in the rural, north-central
part of the State.Salina is the closest thing the region has to
a metropolis with a population of 45,833.The population of OttawaCounty, where District Judge and Church of Christ Elder
George R. Robertson raised chickens as a hobby at
home, stands at 6,175 souls.

The 56 year-old jurist testified
that all the trouble began when he searched the web for "baby
chicks":Whilst he thought he was
cruising the Information Highway in the direction of home poultry-raising,
Judge Robertson was instead misled and charmed into the world of Internet Porn,
according to his account:He said,
"I found what I shouldn't have found."

Apologetically explaining his fall
from grace to the Kansas Commission on Judicial Qualifications, the Judge
portrayed himself as a readily susceptible target for the lures and seductions
of the Adult Internet:He testified that
his job required him to dispose of 3,000 cases annually.He also related that his duties as a church
Elder occupied 15-40 hours per week, handling church finances and visiting the
sick.Fighting tears and speaking in a
quivering voice according to press accounts, he told the seven-member panel
that stress and depression turned him to adult material in the Spring of
2004.By the time of his disciplinary
hearing, he was seeing a psychotherapist and taking medications.

In December 2004, Saline County
Director of Computer Technology Director Brad Bowers discovered that the
ten-year incumbent judge had accessed 38 sexually explicit sites and five
dating sites on his county-owned computer in chambers between November 2, 2004
and January 26, 2005.(Why Bowers was
looking at the Judge's browsing history is not clear.)He reported the matter to county officials,
who in turn told the Chief District Judge, who finally called in Judge
Robertson.When confronted, Judge Robertson
admitted the activity and revealed that his porn browsing had started about
nine months earlier.The Chief District
Judge reported the matter "upstairs" to the Supreme Court;An informal investigation by the Judicial
Qualifications Commission ensued, a formal Complaint was filed on February 9,
2004, the judge then was suspended from duties with pay, and on May 25, 2005,
the Commission conducted a hearing.Twenty-three pages of Judge Robertson’s browsing activity were
introduced in evidence before the Commission.

The judge stood charged with a
series of three violations of the Code of Judicial Conduct as enacted in Kansas:Failure to uphold the independence and
integrity of the judiciary, Failure to avoid impropriety and the appearance of
impropriety and Demeaning the judiciary.At the apparent heart of the Complaint was an allegation that he
violated a local Administrative Order of the Chief District Judge, the purpose
of which, by its own terms, was to regulate the use of the Internet resources
by "staff".Rule 40 permitted
the use of computers for both official court business and to access other
material "consistent with court business", but it went on to provide
that "Access/display of a transmission/downloading of sexually explicit
images, messages or materials of any kind is specifically prohibited."The most serious issue the judge faced was
the allegation that he had brought the judiciary into disrepute by his conduct.
(Of course, it was not Judge Robertson's very private conduct itself
that had brought the judiciary into disrepute, it was rather the discipline
process that brought the matter to public attention:The allegations came to public attention on
March 25, 2004 when the JQC made the formal Complaint public:No one ever alleged that the judge had made
any purchases or had contacted anyone.)

The Administrative Order may not
have applied to him at all.Its own
articulated purpose is to regulate staff use of computers.Judges are State constitutional officers in Kansas (Article III,
Section 6.), and it would be reasonable to understand "staff" as
employees who support judges rather than the judges themselves.Nor is it intuitive that the Chief Judge
would have authority in law to direct or command another judge in this sort of
conduct;Judges are to maintain their
independence as judges.Nothing in the
record suggests that Judge Robertson or his attorneys ever advanced either of
these arguments.

At his hearing, he offered no
defense to the charges themselves.He
testified emotionally as to his contrition, he apologized to essentially
everyone, and he attempted to mitigate the offenses by suggesting that he was a
victim of porn, stress, and overzealous church ministry.He said removal was too harsh.He brought forward evidence of psychological
treatment, the opinions of his peers that he was a good judge, and letters from
23 supporters.The Chief District Judge
testified that the erosion in public confidence created by these charges would
make it difficult for the judge to function; There
was testimony of "irreparable harm" and "embarrassment"
from the other District judges: The
charges had inspired many jokes around the 28th District.Judge Robertson's decision to fall on the
mercy of the Commission did not work:A
majority of the Commissioners voted to recommend his removal while two
dissenters recommended a suspension without pay.He filed no "exceptions" to the
findings of the JQC, and accordingly, the Supreme Court took them to be
true.Judge Robertson appeared
personally in the Supreme Court and argued only that the punishment was
excessive.

On October 7,
2005, the Supreme Court of Kansas unanimously ordered his removal in Matter
of George R. Robertson, 120 P.3d 790 (Kans. 2005).The high court considered the mitigating factors presented to the JQP
but considered them to be outweighed by aggravating factors:1) the access was not isolated but was
ongoing until discovery,2) the access
took place during work hours on a county computer,3) seven years earlier he had been disciplined
in an unrelated situation, 4) he showed disrespect for judicial orders by
violating the Administrative Order; and most importantly to the court, )his conduct impaired the honor and dignity of
the judiciary.

Troubling
issues emerge from the high court's Memorandum Opinion.If the offense for which he was punished was
a violation of the Chief Judge's order, why is it that the selfsame conduct is
described in the Opinion as an "aggravating factor"?Also, one can scarcely imagine that a judge
in Ottawa County, Kansas might be removed from office for
frequently accessing fishing and hunting sites unrelated to court
business.One is led to the conclusion
that he lost his office precisely because the material he looked at was
porn:The Supreme Court fails to say a
word to criticize searching for "baby chicks" on a county computer

The message
conveyed to Kansas judges is that watching
porn is the kind of disreputable behavior that can cost a judge his good name
in Kansas -
and his job.That is a very troubling
matter.Police officers go before judges
to secure search warrants in obscenity cases and they are issued if the judge
finds probable cause; Judges in obscenity bench trials must decide guilt beyond
reasonable doubt to convict.In either
situation, judges are conclusively presumed to know what is patently offensive
and prurient in the eyes of the community in which they sit, necessary elements
of the crime.However, if a Kansas judge actually
tries to survey the erotica that is available online in order to compare it
with what people are saying about it, he does so only at grave personal
peril.It is hard to imagine how a judge
out on the Kansas
prairie can ever acquire the knowledge that the law presumes him to
possess, because what seems to have given rise to "disrepute" about the
judiciary wasn't so much the use of a county computer, but simply the
fact that he was looking at porn.

An unfortunate
message about community standards is also conveyed to the citizenry by Judge
Robertson's removal.If sexually
explicit material can bring down a judge, how can it be lawful?Removal of the judge for watching porn
affects the way the community looks at its own standards, too, and that is an
exceedingly dangerous thing to do among prospective jurors in a State that
prosecutes obscenity with comparative frequency

It is hard to
know whose conduct is more pathetic, that of the Supreme Court of Kansas for
disingenuously ousting a judge because he watched porn while pretending to protect
county property and the good name of judges, or that of the judge himself, for
conspicuously failing to defend himself or to at least to have taken clear
responsibility and put his conduct into rational perspective. There are no
heroes in this story, but there is a victim and its name is freedom.

Copyright 2005-2011 J. D. Obenberger. All rights reserved.

This
article is written to generally inform the public and does not provide
legal advice nor does it establish an attorney-client relationship. If
you have a legal issue or question, contact a lawyer. If you are
arrested, make no statement and contact a lawyer immediately.

Joe
Obenberger is a Chicago Loop lawyer concentrating in the law of free
expression and liberty under the United States Constitution, and his
firm has represented many owners, employees, and customers of
adult-oriented businesses, both online and in the real world. He can be
reached in the office at 312 558-6420. His e-mail address is obiwan@xxxlaw.net.

J. D. Obenberger and Associates are available for consultation, representation, and defense of adult-oriented businesses.